The Dissents Of Priscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It

Reproductive Rights

In 1999, the Texas Legislature enacted a law requiring that, with certain exceptions, a minor's parents be notified before she could obtain an abortion. Tex. Fam. Code §33.001-.011. In particular, the state's Parental Notification Act provides a judicial bypass procedure enabling a mature, sufficiently well-informed minor to obtain a court order permitting an abortion without parental notification. See Bellotti v. Baird, 443 U.S. 622 (1979). In several cases decided by the Texas Supreme Court during 2000 involving the bypass provision, Justice Owen vigorously dissented from the Court's rulings. In these dissents, Owen advocated extremely restrictive interpretations or applications of the bypass law that would have effectively rewritten the law and were significantly more stringent than those of several Bush appointees to the Court. In one of those cases, Owen's extreme views led current White House counsel Alberto Gonzales, then a colleague on the Texas Supreme Court, to charge her and her fellow dissenters with improper judicial activism.

In re Jane Doe, 19 S.W.3d 346 (Tex. 2000) (Doe 1(II))

In a previous appeal by the minor in this case, In re Jane Doe, 19 S.W.3d 249 (Tex. 2000) (Doe 1 (I)), the Texas Supreme Court was given its first opportunity to consider the statutory requirements for a judicial bypass under the state's Parental Notification Act. In its opinion in that case, the Court set out the factual showing that a minor must make in order to satisfy the statutory bypass requirement that she be "sufficiently well informed" to have an abortion without parental notification, as well as the considerations bearing upon a determination as to whether the minor is "mature." Because the lower courts had denied the minor's application for a bypass, the Supreme Court remanded the case to the trial court for "further hearing and consideration" in light of the standards set out by the Supreme Court. 19 S.W.3d at 257. Owen had concurred in the Court's judgment, although not in the Court's explanation of the showing that a minor must make under the bypass provision. Indeed, she specifically criticized the standards adopted by the Court, claiming that they were "minimal" and likely to be met by "[m]ost minors . . . with the assistance of counsel." 19 S.W.3d at 260. Bush appointees Gonzales, Baker, and Hankinson joined the Court majority in the adoption of those standards.

On remand, the lower courts again denied the minor's application for a bypass. In a 6-3 ruling, with Owen writing one of the dissents, the Texas Supreme Court reversed, holding that the minor had "conclusively established the statutory requirements to obtain a judicial bypass." 19 S.W.3d at 361. Owen's dissent focused in particular on her view that the minor was not adequately informed about abortion alternatives. Owen was extremely critical of the majority, which she accused of acting "irresponsibly" and of "manufactur[ing] reasons to justify its action." 19 S.W.3d at 383, 379. She further asserted that "[t]he Court's actions raise disturbing questions about its commitment to the rule of law and to the process that is fundamental to the public's trust in the judiciary." Id. at 377.

The Court, however, explained that Owen's view contradicted the legislature's judgment in enacting the statute. While the legislature could have required that a minor be "fully informed" in order to make a decision to terminate her pregnancy without parental notification, the majority explained, it chose instead to require that a minor be "sufficiently well informed." 19 S.W.3d at 352 (emphasis in original). The Court further observed that "[t]he Legislature had before it -- but rejected -- at least one bill that would have required physicians to supply specified, detailed information about abortion procedures and alternatives to all women, including minors, in order to obtain their informed consent." Id. (citations omitted). The Court also noted that the fact that "a minor does not share the court's views about what the benefits of her alternatives might be does not mean that she has not thoughtfully considered her options or acquired sufficient information about them." Id. at 359.

Particularly in view of the dissents by Owen and others, the Court's opinion is notable for containing specific sections devoted to "the proper role of judges" and "respecting the rule of law." Indeed, at the outset of its opinion, the Court observed that "[a]bortion is a highly-charged issue" and that the role of "the judicial branch [is] to independently review and dispassionately interpret legislation in accordance with the Legislature's will as expressed in the statute." 19 S.W.3d at 349. In light of the dissents, the majority pointedly cited Felix Frankfurter's explanation of "'the function [of a court] in construing a statute'" as "'ascertaining the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. . . A judge must not rewrite a statute, neither to enlarge nor to contract it.'" 19 S.W.3d at 350 (citation omitted)(emphasis added). The majority noted that in deciding this case they had "put aside [their] personal viewpoints." Id. They expressly stated that while "judges' personal views [on abortion] may inspire inflammatory and irresponsible rhetoric," the "highly-charged nature" of the abortion issue "does not excuse judges who impose their own personal convictions into what must be a strictly legal inquiry. . . As judges, we cannot ignore the statute or the record before us. Whatever our personal feelings may be, we must 'respect the rule of law.'" Id. at 356. (emphasis added).

Justice Gonzales, a Bush appointee, not only joined the Court's opinion in its entirety but wrote a separate concurrence in which he criticized the dissenting opinions for suggesting a "narrow construction" of the bypass provision nowhere to be found in the statute, and one "directly contradict[ed]" by legislative history. 19 S.W.3d at 365-66. According to Gonzales, adopting the dissenters' narrow view "would be an unconscionable act of judicial activism." Id. at 366 (emphasis added).

In addition to Justice Gonzales, Bush appointees Baker and Hankinson were in the majority.

In re Jane Doe 3, 19 S.W.3d 300 (Tex. 2000)

This case also involved a minor seeking an abortion who had applied for a judicial bypass of parental notification pursuant to Texas Family Code §33.003. The trial court denied the minor's application and the court of appeals affirmed. In a per curiam ruling joined by six members of the Court, the Texas Supreme Court set aside the judgment and remanded the case to the trial court for further proceedings. In so ordering, the Court noted that "the hearing in the trial court had occurred on the second business day after this Court issued its decision in In re Jane Doe, 19 S.W.3d 249 (Tex. 2000) (Doe 1)," 19 S.W.3d at 300-01, the seminal case in which the state Supreme Court set out the standards governing a bypass application under the "mature and sufficiently well informed" exception to the parental notification requirement. See supra. According to Justice Gonzales, who agreed with the decision to remand the case, "there is no principled basis in matters of this nature" for not permitting the minor to have the opportunity to present her case "with the benefit of the construction of [the Parental Notification Act] by the highest court in this state," while allowing that opportunity to minors in subsequent cases when the lower courts would have the opportunity to apply the decision in Doe 1. 19 S.W.3d at 306.

Nevertheless, Justice Owen dissented from the Court's ruling remanding the case. In his decision concurring in the judgment, Justice Gonzales specifically criticized Owen's dissent as to the remand, stating that:

Justice Owen contends that Doe should not receive the benefit of a remand, concluding that Doe did not attempt to demonstrate that she was sufficiently mature and well informed to make the decision to obtain an abortion. While her proof relating to the showings required in Doe 1 is abbreviated, it is clear from the record that she presented her application without the benefit of that opinion's instruction.

19 S.W.3d at 306 (emphasis added).

One of the issues on appeal was whether the trial court had properly denied the minor's application for a bypass under the provision of the statute mandating a bypass when the minor establishes by a preponderance of the evidence that parental notification "may lead to physical, sexual, or emotional abuse of the minor." Tex. Fam. Code §33.003(i). Although Justice Owen was not in the minority on that issue, her opinion took a stringent view of what a minor must prove under the "emotional abuse" provision, staking out a position more extreme than that of most of her colleagues. The minor had testified that her father was "an alcoholic, that in the past he has gotten intoxicated, overreacted, and taken anger over the children out on her mother and 'become physical' with her mother." 19 S.W.3d at 307. She further testified that she did not want to inform her mother about her decision to have an abortion because "her mother would tell her father and her father would become angry and physically take it out on her mother." 19 S.W.3d at 308. This was insufficient for Owen, who stated that "the evidence of physical abuse of Jane Doe's mother was not so direct, clear, and positive that a trial court was required to conclude as a matter of law that if one of Jane Doe's parents were notified, then Jane Doe may be emotionally abused." 19 S.W.3d at 320. Four justices disagreed, noting that, under the express terms of the statute, a judicial bypass "shall" be granted when the minor shows that parental notification "may lead" to her emotional abuse. 19 S.W.3d at 306 (emphasis in original). Moreover, these justices were expressly critical of the severe standard of proof that Owen would have required:

[U]nder the current statutory scheme, it is highly unrealistic and inappropriate for the courts to differentiate among the perceived degrees or types of abuse that may occur or to consider whether the abuse would occur anyway so that one more instance doesn't matter. Abuse is abuse; it is neither to be trifled with nor its severity to be second guessed. . . . Justice Gonzales would also require proof of "serious emotional injury" on top of the evidence already in this case . . . Justice Hecht and Justice Owen would go further and require Doe to demonstrate that the abuse equated to physical and sexual abuse and resulted in "material impairment in the child's growth, development, or psychological functioning." …This sort of parsing among types or degrees of abuse is not indicated anywhere in the statute.

19 S.W.3d at 307.

In addition to Justice Gonzales, Bush appointees Baker and Hankinson were in the six-justice majority that ordered the case remanded for further proceedings. Baker and Hankinson were among the group of four justices who would have held that the minor had satisfied her burden of proof under the "emotional abuse" provision and should have been granted a bypass.

In re Jane Doe 4, 19 S.W.3d 322 (Tex. 2000)

Like the prior cases, this one also involved a minor's appeal from the lower courts' denial of her application for a judicial bypass so that she could obtain an abortion without parental notification. In a 6-3 ruling, with Owen writing a dissent, the Texas Supreme Court ordered that the lower court judgments be vacated and the case remanded to the trial court for another hearing in light of Doe 1 (above), which was issued the same day as the minor's hearing in this case, and a subsequent decision, In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000). Although the Court concluded that the minor had failed to demonstrate her entitlement to a bypass, the Court held that "[n]either the minor nor the trial court should be deprived of our clarification of the law in these cases merely because the hearing occurred before the trial court, the minor, or her lawyer were aware of this Court's holdings." 19 S.W.3d at 327. Owen, however, would have denied the minor even the opportunity to present her case with the benefit of the Court's decisions in Doe 1 and Doe 2. Bush appointees Gonzales, Baker and Hankinson were in the majority.